Tripura

StateCommission

A/10/2015

Shri. Vijay rathor - Complainant(s)

Versus

Jet Airways(India)Ltd. & Others. - Opp.Party(s)

Mr. N.Gopal Nandi, Mrs. D.Debnath, Miss. T.Rani shil

16 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

APPEAL CASE No.A/10/2015

 

Shri Vijay Rathor,

S/O, Shri Dilip Kumar Rathor,

Skargard Vagen 262-D, 13931,

Varmdo, SWEDEN,

represented by its Constituted

Attorney Shri Pradip Rathor,

S/O. Shri Dilip Kumar Rathor,

Palace Compound, Agartala,

Tripura West, PIN-799001.

                   ….    ….    ….    ….    Appellant.

                   Vs

1. Jet Airways (India) Ltd.

Siroya Centre, Sahar Airport

Road, Andheri (East)

Mumbai, 400099, India,

(Represented by the Managing Director).

 

2. Jet Airways (India) Ltd.

Agartala Airport Office,

Narsingarh, Agartala, Tripura West,

PIN-799009.(Represented by the Duty Manager).

                   ….    ….    ….    ….    Respondent-OPP.PARTIES..

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

              MR.NARAYAN CH. SHARMA,

          MEMBER

            STATE COMMISSION.

               

For the Appellant                  :      Mrs.D.Debnath,Adv &     

                                                 Mr.N.G.nandi,Adv.

          For the respondents              :     Mr.P.Majumder,Adv.

          Date of Hearing                    :     22.09.2015.

Date of delivery of Judgment  :     16.10.2015.

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 17.04.2015 by Shri Vijay Rathor represented by his Constituted Attorney Shri Pradip Rathor under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment dated 27.02.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-11 of 2014 whereby the Ld. District Forum dismissed the complaint filed under Section 12 of the Consumer Protection Act being devoid of merit, but without any order as to costs.      

2. The case of the appellant as narrated in the memo of appeal, in brief, is that on 20.12.2013 the appellant had travelled by Jet Airways, the respondent No.1 from Brussels to New Delhi vide Flight No.No.9W229 and after arriving at Indira Gandhi International Airport, Delhi, the appellant detected that his checked-in baggage (Tag No.SN609648) has not been boarded in the aircraft by the staff of the respondents and the said checked baggage was misplaced.                                                  
3. It is also alleged that the appellant lodged a missing report for his checked baggage to the staff of the respondent No.1 at Delhi Airport and the staff of the respondent No.1 took the original boarding pass and assured the appellant that the missing baggage would reach to him in his given address at “Hotel Lindsay”, 8A & 8B, Lindsay Street, Kolkata-700087 positively by 21.12.2013 and further assured that his inconvenience would be compensated and on the basis of that assurance, the appellant took the pre-booked flight i.e. 9W7039 Jet Airways from Delhi to Kolkata on 21.12.2013.
4. It is also alleged that the respondent No.1 through its agent i.e. Dalui & Sons handed over the appellant’s missing baggage to him in his said hotel address in Kolkata on 22.12.2013 at 9.45 p.m. after a delay of 48 hours and in the mean time, the appellant had to incur expenditure of Rs.17,689/- for staying in the hotel and also for purchasing his clothing and other necessary articles, but the appellant not being satisfied with the service of the respondents lodged the complaint before the Ld. District Forum which was registered as C.C.11 of 2014 and thereafter, the Ld. District Forum considering the pleadings of the parties, evidences and hearing argument passed the impugned judgment on 27.02.2015 dismissing the complaint.            
5.  That being aggrieved by and dissatisfied with the impugned judgment dated 27.02.2015, the appellant has preferred the instant appeal on the grounds that the Ld. Forum erred in law as well as in fact in arriving at an erroneous conclusion, that the Ld. Forum did not consider that the respondent No.1 failed to hand over the checked-in baggage of the appellant within 24 hours as assured by it, that the Ld. Forum did not consider that the respondent-Jet Airways did not inform the appellant that Jet Airways did not receive the checked baggage of the appellant at Brussels Airport from Brussels Airlines, that the Ld. Forum did not consider that it was incumbent on the Jet Airways having its tie-up relationship with the Brussels Airlines for its failure to receive the checked-in baggage of the appellant from Brussels Airlines, that the Ld. Forum did not consider that the Jet Airways being a tie-up Airlines was under obligation to inform the passengers, if the checked-in baggage of the said passenger is not received by it from the connecting flight, that the Ld. Forum failed to consider this serious security lapse of the respondents and that the Ld. Forum failed to consider that the respondent-Jet Airways were negligent and deficient in providing proper service to the appellant and being failed to appreciate the facts and circumstances of the case erroneously dismissed the complaint by the impugned judgment which cannot be sustained in the eye of law and hence, the instant appeal has been preferred.              

   

 

Points for consideration.

6.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in dismissing the complaint by the impugned judgment and (2) whether the impugned judgment under challenge in this appeal should be set aside as prayed for.      

                         Decision with Reasons.

7.  Both the points are taken up together for the sake of convenience and brevity.
8. At the outset, the learned counsel for the appellant submitted that the respondent Jet Airways had its tie-up relationship at the relevant time with the Brussels Airlines. He also submitted that the appellant was coming to Kolkata from Brussels via Delhi Airport by availing Jet Airways flight No.9W 229. He also submitted that when the appellant reached at Delhi Airport, he detected that his checked-in baggage has not reached to Delhi from Brussels through the said Jet Airways flight by which the appellant as passenger reached to Delhi Airport from Brussels. He also submitted that the appellant then and there lodged a complaint regarding his missing checked-in baggage with the staff of the Jet Airways in Delhi Airport when he was assured that the missing luggage would reach to him within 24 hours, but the said missing luggage reached to him through the agent of the Jet Airways named Dalui & Sons in Kolkata where he was staying in Lindsay Hotel on 22.12.2013 at 9.45 p.m. after a delay of nearly 48 hours.   
9. The learned counsel for the appellant also submitted that all urgent   necessaries of the appellant were in the said missing luggage and as a result, the appellant had to stay two more days in a hotel in Kolkata and also incurred an expenditure for a considerable amount for purchasing winter clothings and other daily materials. He also submitted that for two days the appellant had to pass time in an anxiety and suffered mental agony and harassment. He also submitted that the respondents did not inform the appellant at Brussels Airport before departure that the checked-in baggage of the appellant was not received by the said aircraft at Brussels Airport. He also submitted that having a tie-up relationship the Jet Airways was under legal obligation to receive and carry the checked baggage of the appellant from Brussels Airport to Delhi Airport and thereafter from Delhi Airport to Kolkata Airport. He also submitted that in spite of such negligence and deficiency in service on the part of the Jet Airways in not receiving and carrying the checked-in baggage of the appellant from Brussels to Delhi Airport, the Ld. Forum failed to appreciate this facts and circumstances of the case and erroneously dismissed the complaint by the impugned judgment which cannot be sustained in the eye of law and should be set aside by allowing the appeal awarding a just compensation for the negligence and deficiency in service on the part of the respondents.    
10. On the other hand, the learned counsel for the respondents submitted that the complainant in his initial complaint has suppressed his initial journey from Bromma by Brussels Airlines Flight No.SN 2310 for coming to Brussels Airport. He also submitted that the complainant has prepared the complaint in such a manner as if he started his journey from Brussels Airport to Delhi Airport by Jet Airways flight and then to Kolkata, but the fact is found and proved otherwise.  
11. He also submitted that the checked-in baggage of the complainant was booked at Bromma Airport and that was received by Brussels Airlines which was not controlled and operated by the respondent-Jet Airways. He also submitted that the complainant himself failed to adduce any documentary evidence for proving that Jet Airways at the relevant time had any tie-up relationship with Brussels Airlines. He also submitted that the complainant also failed to adduce any iota of evidence for establishing that the respondent-Jet Airways was the connecting flight of Brussels Airlines.  
12. The learned counsel for the respondents also submitted that the checked-in baggage of the complainant booked at Bromma Airport did not reach at Brussels Airport by the Brussels Airlines in time and as such, the Brussels Airlines did not hand over the checked-in baggage of the complainant to the respondent-Jet Airways Flight No.9W 229 for bringing the same from Brussels to Delhi. He also submitted that as the respondent, Jet Airways did not receive the checked-in baggage of the complainant at Brussels Airport from Brussels Airlines before its departure from Brussels Airport for New Delhi, the Jet Airways cannot be fastened with any liability for missing of the said luggage, however, temporary it may be. He also submitted referring to Exhibit-A, the ‘NSFT’ Report for 20.12.2013 as obtained from Jet Airways Airport Services Team at Brussels that the respondents could not find any checked-in baggage of the complainant at Brussels Airport for carrying the same from Brussels Airport to Delhi Airport and as such, the respondents cannot be said to be negligent and deficient in service towards the complainant. He also submitted that negligence and deficiency, if any at all, was with the Brussels Airlines who did not bring the checked-in baggage of the complainant from Bromma Airport and did not hand over the same to Jet Airways at Brussels Airport in time. He also submitted that the Brussels Airlines is not a party to the instant case and therefore, for the alleged negligence and deficiency on the part of the Brussels Airlines, the respondent-Jet Airways cannot be held liable in any manner.     
13. The learned counsel for the respondents also submitted that when the complainant detected that his checked-in baggage did not reach to Delhi Airport, he lodged a complaint for checked-in baggage by filling up a form of Property Irregularity Report on 21.12.2013 at Delhi Airport and in lodging such complaint the staff of the respondents help the complainant. He also submitted that the staff of the respondents assured to trace out the checked-in baggage of the complainant for handing over the same to him in his scheduled address at Lindsay Hotel, Kolkata. He also submitted that accordingly, the respondents through ‘World Tracer Messages’ as obtained from the computer system of Jet Airways Airport Services Team at New Delhi (Ext.C) traced out the checked-in baggage of the complainant and delivered it to the complainant in his stay-in-hotel (Lindsay Hotel) in Kolkata on 22.12.2013 within a reasonable time.   
14. The learned counsel for the respondents also submitted that the allegation of the complainant to the effect that for such missing of his checked-in baggage he had to stay two more days in Kolkata Lindsay Hotel, is not correct because as per stay schedule of the complainant as appearing from the bill of Hotel Lindsay, the complainant stayed in that hotel till 25.12.2013 and made a departure of that hotel on 26.12.2013. The learned counsel for the respondents also submitted that the facts and circumstances of the case have made it clear that Brussels Airlines is a necessary party, but the complainant has not made that Airlines as a party to this case and therefore, the instant complaint must be held defective for non-joinder of necessary party. He also submitted that the complaint has been filed, not by the complainant himself, but by his power of attorney holder before the Ld. District Forum. He also submitted that a power of attorney holder who was not present on the spot in all places cannot say definitely as to what happened in those places concerning his checked-in baggage. He also submitted that the suppression of the initial journey of the complainant from Bromma to Brussels Airport in the complaint has made it clear that the complainant has not come before the Ld. District Forum in lodging the complaint in clean hand and as such, the complainant is not entitled to get any relief against the respondents.
15. The learned counsel for the respondents lastly submitted that the Ld. District Forum meticulously considered all aspects of the case and rightly arrived at the conclusion and thereby, dismissed the complaint by the impugned judgment which being proper, legal and justified, should be affirmed and the appeal should be dismissed outright having no merit at all.
16. We have gone through the complaint petition, the written objection, the evidences both oral and documentary, the impugned judgment and the memo of appeal. We have also considered the argument advanced by the learned counsels of both sides. Admittedly, the complaint has not been lodged before the Ld. District Forum by the complainant Vijay Rathor himself, rather it has been lodged by his brother Pradip Rathor being the Power of Attorney holder of the complainant. It is also now admitted fact that the complainant started his initial journey from Bromma in Stockholm to Brussels Airport by Brussels Airlines and from Brussels Airport he availed of the Jet Airways flight being 9W 229 on 20.12.2013 and reached to Delhi Airport on the same date i.e. on 20.12.2013 and from Delhi Airport he availed of the Jet Airways Flight No.9W 7039 on 21.12.2013 and arrived at the Kolkata Airport on the same date. It is also found admitted position that the complainant withheld the fact of his initial journey from Bromma in Stockholm to Brussles Airport by Brussels Airlines in his complaint and the reason of it is best known to the complainant. However, the learned counsel for the complainant-appellant failed to explain as to why the complainant suppressed the fact of his initial journey from Bromma to Brussels Airport by Brussels Airlines in the complaint.
17. It is also found admitted position that the complainant would not adduce an iota of evidence for establishing that the respondent-Jet Airways had any tie-up relationship with the Brussels Airlines at the relevant time and also the respondent-Jet Airways was the connecting flight of Brussels Airlines at that time. No evidence, whatsoever, has been adduced from the side of the complainant for establishing that the Brussels Airlines handed over the checked-in baggage of the complainant to the respondent-Jet Airways at Brussels Airport for carrying the same from Brussels Airport to Delhi Airport by Flight No.9W 229 by which the complainant came to Delhi Airport from Brussels Airport, rather ‘NSFT’ report produced from the side of the respondents in the District Forum has made it clear that the staff of the respondents engaged in service at Brussels Airport did not receive any checked-in baggage of the complainant for transfer at Brussels Airport from Brussels Airlines Flight No.SN 2310 which is not operated and controlled by the respondent-Jet Airways.
18. It is true that the complainant submitted a complaint to the staff of the respondents at Delhi Airport by filing up a form PIR (Property Irregularity Report) on 21.12.2013 and on the following day i.e. on 22.12.2013 the respondent-Jet Airways traced out the checked-in baggage of the complainant and handed over the same to the complainant through its agent Dalui & Sons at Hotel Lindsay, 8A & 8B, Lindsay street, Kolkata-87 on 22.12.2013 which, according to us, cannot be said to be an inordinate delay in any manner. Furthermore, the complainant-appellant adduced no documentary evidence for proving that the staff of the respondents actually assured the complainant that the checked-in baggage of the complainant would reach to him in his schedule stay-in-Hotel Lindsay at Kolkata within alleged 24 hours. 
19. From the hotel-schedule of the complainant (Annexure-A) it transpires that the complainant stayed in that hotel till 25.12.2013. So, the allegation of the complainant that due to the missing of checked-in baggage the complainant, he had to stay two more days in that hotel, does not arise at all. It is true that the complainant he purchased some articles in Kolkata on 21.12.2013. At the same time, there is nothing on record to establish that those necessaries were already in the checked-in baggage of the complainant. In the absence of any evidence in this regard, it cannot be said that on account of alleged missing of the checked-in baggage, the complainant had to purchase some necessaries and thereby incurred an expenditure for any negligence and deficiency in service of the respondents.
20. It is true that the Power of Attorney holder who on behalf of the complainant lodged the complaint has examined himself as P.W.1. According to us, a power of attorney holder, if he is acquainted with the facts of the case, can depose on behalf of the complainant. The point that how far such deposition of the power of attorney holder is to be believed, is a different question. So, we find no illegality to consider the deposition of the P.W.1 examined on behalf of the complainant by virtue of the Power of Attorney executed by his brother, the complainant herein.
21. Going through the written objection filed by the respondent-Jet Airways, we find that the respondents nowhere pleaded in their written objection that the Brussels Airlines is a necessary party and in its absence the complaint cannot be disposed of effectively. It also appears that the learned counsel for the respondents for the first time has taken the plea of non-joinder of necessary party in this appeal, but without taking any plea of non-joinder of necessary party in the written objection filed for the respondents in the Ld. District Forum, such submission of the learned counsel for the respondents is not legally tenable at this stage in this appeal and therefore, we are unable to accept the submission of the learned counsel for the respondents that the complaint is liable to be dismissed for non-joinder of Brussels Airlines as a necessary party to the complaint.
22. Admittedly, the Brussels Airlines who initially booked the checked-in baggage of the complainant at Bromma Airport is not a party in this case. It is also found apparent that the Brussels Airlines did not hand over the checked-in baggage of the complainant to the respondent-Jet Airways at Brussels Airport before its departure for carrying the same to Delhi Airport by Flight No.9W229 by which the complainant himself came to Delhi Airport from Brussels Airport. It is not the case of the complainant that he booked his baggage with the respondents Jet Airways at Brussels Airport and the respondents Jet Airways received the baggage of the complainant at Brussels Airport from the complainant for carrying from Brussels to Delhi Airport, but failed to bring the same to Delhi Airport by Jet Airways Flight No.9W 229 availed by the complainant. So, in that case, we are of the view that the respondent-Jet Airways cannot be fastened with any liability of negligence and the deficiency in service towards the complainant in any manner. On the other hand, it is well established from the facts and circumstances of the case that the negligence and the deficiency in service towards the complainant is found with the Brussels Airlines and not with the Jet Airways, respondents herein.
23. We have gone through the impugned judgment and found that the Ld. District forum elaborately considered the facts and circumstances of the case and ultimately arrived at the right conclusion and dismissed the complaint by the impugned judgment, which, according to us, calls for no interference by this Commission. Therefore, we find practically no merit in the appeal which is liable to be dismissed and the impugned judgment is also liable to be affirmed.         
24. In the result, the appeal fails. The impugned judgment dated 27.02.2015 passed by the Ld. District Forum,West Tripura, Agartala in case No.C.C.11/14 is hereby affirmed. There is no order as to costs.

 

       MEMBER                            MEMBER                         PRESIDENT

             State Commission                State Commission              State Commission

                    Tripura                                  Tripura                                Tripura